In the absence of any provision in the mortgage reserving the right of possession to the mortgagor or of any agreement express or implied to the same effect, a legal mortgagee is entitled, after the making of the mortgage and by virtue of the conveyance to him of the legal estate, to take possession of the mortgaged lands at any time (e). It is usual, however, in Ontario to insert in a mortgage a proviso that the mortgagor until default shall have quiet possession of the lands (f), and in any case, until the mortgagee demands possession, the mortgagor's possession is lawful (g).

On the other hand, as an equitable mortgage does not convey the legal estate (h) the former rule was that an equitable mortgagee was not entitled to bring an action of ejectment against the mortgagor. An action for possession, however, is not now liable to be defeated on the ground of the absence of the legal estate, it being sufficient for the purpose of the action that the plaintiff should be entitled to possession as against the defendant (i). Therefore, where a second mortgage has been created by conveyance of the equity of redemption, and the first mortgagee does not take possession, the second mortgagee, since he is entitled to possession as against the mortgagor, has probably a right to take possession (i), and certainly has such right if the mortgage expressly gives it to him (k). In the case of other equitable mortgagees, the equitable equivalent to the taking of possession is the appointment by the court of a receiver of the rents and profits (I).

(d) See chapter 31, Sale under Power of Sale; chapter 32, Appointment of Receiver; chapter 33, Attornment and Distress.

(e) See Sec. 213, infra. Cf. chapter 2, Mortgage at Common Law, Sec. 12.

(f) See Sec. 214. (g) See Sec. 215. (h) See chapter 5, Equitable Mortgages, Sec. 41.

It a mortgagee is entitled to possession as between himself and the mortgagor, and the land is in the occupation of the mortgagor or of any other person whose title is not superior to that of the mortgagee (m), the mortgagee may enter on the.

(i) General Finance, Mortgage and Discount Co. v. Liberator Permanent Benefit Building Society, 1878, 10 Ch.D. 15, at p. 24.

(j) See 21 Halsbury, Laws of England, p. 190, note (i), where it is stated that the dictum of North, J. in Garfitt v. Allen, Allen v. Longstaffe, 1887, 37 Ch.D. 48, at p. 50, that an equitable mortgagee cannot take possession, applies only where, as in that case, the encumbrance is by mere charge. See, however, Vacuum Oil Co. v. Ellis, [1914] 1 K.B. 693, at p. 703.

(k) Ocean Accident and Guarantee Corporation v. Ilford Gas Co., [1905] 2 K.B. 493. It is usual in Ontario to insert in a mortgage a covenant on the mortgagor's part that on default taking place the mortgagee shall have quiet possession. See Sec. 214, infra.

(l) See chapter 32, Appointment of Receiver, Sec. 351.

(m) For instance, a tenant under a lease made after the mortgage without the authority of the mortgagee. See chapter 15, Lessee of Mortgaged Land, Sec. 143.

land if he can do so peaceably (n) or may bring an action for possession (o). If the land is in the occupation of a tenant under a lease which is binding on the mortgagee, the mortgagee may take possession by requiring the tenant to pay rent to him (p). In either case, after obtaining possession, he becomes liable to account as a mortgagee in possession (q).

A puisne mortgagee's right to possession or to the appointment of a receiver is subject to the right of the prior mortgagee to take possession, but if the prior mortgagee takes possession the puisne mortgagee may require him to pay over the surplus rents and profits (r). If a receiver has been appoint-ed on the application of a puisne mortgagee, the prior mortgagee is not entitled to recover possession without the leave of the court unless the order appointing the receiver has reserved to the prior mortgagee the right to take possession (s).

If a mortgagee takes possession the mortgagee may redeem without giving notice or paying interest in lieu of notice, the taking of possession being considered as a demand for payment (t).

The right to take possession or to bring an action for possession may be barred by lapse of time, but an action for possession by a mortgagee to put himself in possession of land which he is to hold as a pledge subject to account must be distinguished from an action for possession by a mortgagee who has already obtained a final order of foreclosure and who is therefore the absolute owner free from the mortgagor's equitable right to redeem. In the latter case the final order constitutes a new starting point for the running of the statute of limitations (u).

(n) Doe d. Fisher v. Giles, 1829, 5 Bing. 421. In order to gain entrance the mortgagee may break open an outer door of a house which is unoccupied or has been vacated. Lows v. Telford, 1876, 1 App. Cas. 414; Doe d. Bryant v. Cunard, 1843, 2 Kerr (N.B.) 193.

(o) Doe dem. Garrod v. Olley, 1840, 12 A. & E. 481.

(p) See chapter 15, Lessee of Mortgaged Land, Sec. 142.

(q) See chapter 28, Mortgagee in Possession, Sec. 301.

(r) Parker v. Calcraft, 1821, 6 Madd. 11.

(s) See chapter 32, Appointment of Receiver, Sec. 351.

(t) Bovill v. Endle, [1896] 1 Ch. 648; and see chapter 25, Action for Redemption, Sec. 252.

The summary procedure by which a landlord in Ontario may obtain possession against an overholding tenant as provided by the Landlord and Tenant Act, R.S.O. 1914, c. 55, is not available to a mortgagee who seeks to obtain possession against the mortgagor where no relation of landlord and tenant exists between the parties,, and in any case the power given to the court by the statute ought not to be exercised so as unfairly to deprive the mortgagor or other persons interested in the mortgaged land of the ordinary methods of trial and the ordinary right of appeal after trial (v).